May 19, 2019

Archives for March 2010

Case Law: Colorado Supremes Rule on Revised C.R.C.P. 16.2 in Marital Dissolution Cases

The Colorado Supreme Court has ruled that the revision of C.R.C.P. 16.2 “does not allow the trial courts to retain jurisdiction to modify property divisions based on disclosures made pursuant to petitions for dissolution that were filed before the effective date of the new rule.”

In the three consolidated cases of In re Marriage of Roberts, In re Marriage of Schelp, and In re Marriage of Barrett, the parties in each divorce filed for dissolution prior to the revision of C.R.C.P. 16.2, which affects cases filed on or after January 1, 2005. After the divorces were granted, one party in each divorced couple learned of holdings omitted from his or her former spouse’s disclosure of marital property. The petitioners filed post-decree motions requesting a review of the trial court’s orders in light of the newly disclosed property. At issue in all three cases was whether the new C.R.C.P. 16.2 allowed the trial court to modify post-decree motions concerning the division of marital property.

Writing for the court, Justice Michael L. Bender opined:

We agree that the new rule applies, in a general sense, to post-decree motions filed after January 1, 2005, even where the underlying petitions for dissolution were filed before that date. However, we disagree with the assumption that the five-year retention provision allows a court to reopen property divisions that were based on disclosures made pursuant to domestic relations cases initially filed under the old rule. Instead, the five-year retention provision applies only to disclosures made pursuant to the new rule for the purposes of resolving new cases or new post-decree motions filed after the effective date.

Case Law: First Post-Citizens United Case Decided

If you were wondering how the first case following the landmark decision in Citizens United v. Federal Election Commission would shake out, wonder no more.

Just nine weeks after United States Supreme Court opened the field for political advertising directly funded by corporations and labor unions, the D.C. Circuit Court of Appeals has decided, en bancSpeechNow.org v. Federal Election Commission, the first case in Citizens United‘s wake.

At issue was whether SpeechNow.org, a 527 organization formed for the political advocacy of free speech (particularly free speech by way of campaign spending), was subject to the campaign contribution limits of a “policital committee” and whether such limits violate the First Amendment. Following the lead of the high court in Citizens United, the D.C. Circuit court found the spending limits unconstitutional. The donation reporting requirements remain unchanged by the court ruling.

See here for a comprehensive wrapup of SpeechNow.org — and, of course, keep your eyes on CBA-CLE Legal Connection for more Citizens United developments, coast to coast, as they happen.

Resource: Insurance Division Updates Title Insurance Regulation

The Code of Colorado Regulations regarding title insurance is set to undergo repeal and repromulgation that were approved at a meeting held this month at Division offices. The changes concern Insurance Regulation 3-5-1 and become effective May 1, 2010.

The changes add important language about fiduciary duty and bring the Regulation in line with Colorado statutes.

According to the Division of Insurance, the reasons for the revision are threefold:

(1) to interpret and implement the title insurance code found in article 11 of title 10 of the Colorado Revised Statutes; (2) to promote the public welfare by proscribing practices which, if not proscribed, could result in excessive, inadequate, or unfairly discriminatory rates for title insurance, and which practices, if not proscribed, could allow unlawful inducements, deceptive trade practices, and discriminatory acts, all of which are detrimental to the consumer and, in the aggregate, may threaten the solvency of title insurance companies and title insurance agents; and (3) to ensure to the consumers the benefits of competition in the area of title insurance.

To view a redline of the changes, click here.

Update: Citizens United Action Wrap-up

And so begins the campaign finance fallout from the recent SCOTUS decision in Citizens United v. Federal Elections Commission.

Responding to interrogatories submitted by Governor Bill Ritter, the Colorado Supreme Court on Monday issued an opinion elucidating the interplay between Citizens United and the Colorado Constitution.

The court found that the two contested articles of the state constitution, Sections 3(4) and 6(2) of Article XXVIII, violate the First Amendment under Citizens United:

… to the extent that Colo. Const. art. XXVIII, § 3(4) makes it unlawful for a corporation or labor organization to make expenditures expressly advocating the election or defeat of a candidate, it violates the dictates of the First Amendment of the U.S. Constitution. Similarly, it held that to the extent that Colo. Const. art. XXVIII, § 6(2) makes it unlawful for a corporation or a labor organization to provide funding for an electioneering communication, it violates the dictates of the First Amendment of the U.S. Constitution.

In another local development, a Denver Post article reports that several members of the Colorado legislature hope to close current and potential disclosure loopholes in post-Citizens United campaign finance before the 2010 election cycle.

In more related news, the Texas Tribune this week reported the first-known appearance of a corporate-funded political ad in the wake of Citizens United. Incumbent state representative Chuck Hopson (R-Jacksonville) was the target of an adversarial political ad appearing in East Texas newspapers in the leadup to a recent Republican primary for Hopson’s legislative seat. While the move is an early test of Citizens United, the ads themselves seemed to play little or no part in the primary outcome: Hopson bested his fellow Republican opponents by 61 percent. Hopson’s GOP credibility came under fire last November when he jumped the Democratic ship and became a Republican while in still office. He is running for re-election on the GOP ticket, to the apparent chagrin of some Republicans, who view the ex-Democratic legislator and his newly minted GOP credentials with suspicion.

With its Citizens United decision, the nation’s high court overturned a century-old position barring direct corporate advocacy of candidates running for political office, and gave corporations and unions the green light to purchase political ads in the 60-day run-up to elections.

CLE: "Waiting to Exhale: Managing Medical Marijuana in the Workplace"

Noon was the time and CBA-CLE’s Classroom was the place for a one-hour seminar on the year’s hottest legal topic: legalized medical marijuana. Simultaneously webcast to off-site “attendees,” “Waiting to Exhale: Managing Medical Marijuana in the Workplace” focused on the myriad considerations employers must now undertake in response to the rapid growth of medical marijuana clinics in Colorado.

(Click here for the mp3 program download.)

Local employment law experts Chuck Passaglia and Kimberlie Ryan headed the panel, addressing questions such as:

  • How does lawful use of marijuana affect drug-testing programs?
  • Do employers have to accommodate medical marijuana use — on or off the job?
  • What are the rights, if any, of medical marijuana users?
  • What can an employer do to safeguard its workplace?
  • Have any courts ruled on this matter?

Medical-use marijuana was legalized in Colorado in 2000, but no employment-related cases have yet faced state courts. Passaglia and Ryan discussed the ramifications of federal, California, Oregon, and Washington court challenges, as well as the complicated interplay of state and federal laws that Colorado courts eventually will face.

Chemical compounds in marjijuana have proven, medical application in treating glaucoma, inducing hunger in AIDS patients, counteracting nausea caused by chemotherapy, and relieving chronic pain. The former drug of choice of the 1960s counterculture movement is approved for medicinal use in 14 states, with more than a dozen others considering similar legislation.

Passaglia, an employment lawyer and entertaining lecturer on workplace compliance matters, covers the full spectrum of issues raised by lawful use of medical marijuana. Ryan dedicates her practice as Special Counsel to King & Greisen to defending the rights of workers and advocating for their just treatment.

Stay tuned to CBA-CLE Legal Connection for more developments on the impact of legalized medical marijuana as they happen.

Resource: Colorado Counties Host In Forma Pauperis Pilot Program

Five Colorado counties are participating in a pilot program to waive fees for filing motions in forma pauperis. As of February 16, filers in Douglas, El Paso, Fremont, Otero, and Pueblo counties may request a waiver of court filing fees by supplying the court with the following documentation when they file Forms JDF 205 (.pdf, Motion to File Without Payment and Supporting Financial Affidavit) and JDF 206 (.pdf, Finding and Order Concerning Payment of Fees):

  • Photocopies (not original statements) of bank statements, including savings and checking accounts, for the previous three months; and
  • Photocopies (not original statements) of “pay stubs and/or proof of income,” the sources of which may include wages; self-employment earnings; and benefit payments through unemployment, Social Security, workers’ compensation, alimony, and the like, for the previous three months.

Parties filing in forma pauperis due to incarceration must instead submit Forms JDF 201 (.pdf, Inmate Motion Requesting to File Without Prepayment of Filing/Service Fees) and JDF 202 (.pdf, Finding and Order Concerning Inmate Motion), as well as a certified copy of their Inmate Account statement.

All forms are available in Adobe Acrobat (PDF) and Microsoft Word formats, as well as Word templates, on the State Judicial website. These forms are also available in Spanish. Please note, however, that regardless of whether a form is English or Spanish, state statute requires all forms to be completed in English.

Case Law: SCOTUS Defines "Principal Place of Business"

In Hertz Corp. v. Friend (.pdf), the United States Supreme Court clarified that the “principal place of business” of multi-state corporations is the headquarters, or “nerve center,” of their operations.

Associate Justice Stephen G. Breyer, writing the opinion for a unanimous Court, noted:

… the phrase “principal place of business” refers to the place where the corporation’s high level officers direct, control, and coordinate the corporation’s activities. Lower federal courts have often metaphorically called that place the corporation’s “nerve center.” [Citations omitted.] We believe that the “nerve center” will typically be found at a corporation’s headquarters.

What are the possible effects of this decision on the way business is done? Will it redefine “business as usual”? For discussions, see here and here.

For a detailed background of Hertz, see this penetrating article by Tony Mauro of the National Law Journal.

Resource: The New Face of SCOTUS

With so much buzz about the likely departure of Associate Justice John Paul Stevens and who his successor might be, it is easy to overlook the other new face of the United States Supreme Court: its newly redesigned website.

Not just another pretty face, the new website includes new content, such as:

  • Homepage links to recently decided cases;
  • Docket files for the last ten years;
  • A comprehensive calendar showing Court activities;
  • A new case citation finder; and
  • Improved search and navigation capabilities.

CLE: Medical Marijuana in the Workplace

As the number of employees with medical marijuana cards continues to climb, more employer/employee issues reveal themselves. This hour-long CBA-CLE program takes a look at these new challenges.

Available live and via webcast. MP3 downloads and online video will be available after the program.

Resource: 2008 Criminal Jury Instructions Available Online

The complete Colorado Criminal Jury Instructions, revised through December 2008, are available on the State Judicial website.

Legal Update: New Yorker Mag Profiles SCOTUS Justice Stevens

With speculation rampant that longtime SCOTUS justice John Paul Stevens will soon announce his retirement from the high court, it seems there is no better time than now for a closer look at the man behind the bench.

Legal commentator Jeffrey Toobin interviews the bow-tied jurist in the March 22 issue of The New Yorker (article here), in a fascinating profile repleat with Stevens’s personal, professional, and judicial history.

At nearly 90 years of age, Stevens is the Supreme Court’s oldest, and 4th-longest-serving, member. He was appointed by President Gerald R. Ford in 1975.

Legal Update: Crim. P. 43(e) Amendment Proposed; Comments Requested

The Colorado Supreme Court requests comments from interested parties on proposed amendments to the Colorado Rules of Criminal Procedure (Crim. P.) 43(e), Presence of the Defendant.

If approved, the amendments will add language to the Rule that (1) adds “computer based” to the definition of “interactive audiovisual device”; (2) incorporates additional types of hearings to which defendants may appear via an approved audiovisual system; and (3) standardizes syntax appearing in the Rule. The proposed amendments were proposed by a minority report of the Supreme Court Rules of Criminal Procedure Committee.

Interested parties must submit written comments to Susan J. Festag, Clerk of the Supreme Court, by the close of business on Friday, June 4.

Additional details here.